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2015 DIGILAW 974 (CAL)

Gunamay Mahato v. State of West Bengal

2015-12-18

DEBANGSU BASAK

body2015
JUDGMENT : Debangsu Basak, J. The petitioner seeks retirement benefit. 2. It is contended on behalf of the petitioner that, although the petitioner was convicted in a criminal case under Sections 148, 149 and 302 of the Indian Penal Code, he is entitled to retirement benefits. He had reached the age of superannuation on April 13, 2014. On an appeal preferred from the order of conviction, the High Court had suspended the execution of the sentence. The petitioner had been granted bail by the Appeal Court. 3. Relying upon 2014 2 CHN 103 (Anandi Prasad Mahato v. State of West Bengal) and the judgment and order dated July 9, 2015 passed in W.P. No. 9890(W) of 2015 (Prafulla Chandra Mahato v. The State of West Bengal & Ors.) it is submitted that, pendency of a criminal case is not a valid ground for withholding of terminal benefit of a Government employee. 4. The State and the Council authorities are represented. 5. It is contended on behalf of the Council that, the petitioner is governed by the West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981. In chapter V Rule 19(5) thereof the petitioner is not entitled to pensionary benefits during the pendency of a judicial proceedings. The Appeal has not been disposed of as yet. The provisions of West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 have not been considered in Anandi Prasad Mahato (supra). 6. I have considered the rival contentions of the parties and the materials made available on record. 7. The petitioner was a primary teacher. He was an accused in Sessions Case No. 31 of 2003 and Sessions Trial No. 44 of 2003. The petitioner was convicted under Sections 148, 149 and 302 of the Indian Penal Code. The petitioner had preferred an appeal against the order of conviction dated November 28, 2003. Such appeal was admitted. An application for grant of bail in connection with the appeal was disposed of by an Order dated April 4, 2005. The petitioner has been enlarged on appeal. The execution of the sentence has been suspended to pending the appeal. The petitioner was suspended by a Memo bearing No. 4049(1) dated February 1, 2004. The petitioner claims that subsequent to the order of suspension, he had applied for withdrawal of suspension in view of the grant of bail by the Appeal Court. The execution of the sentence has been suspended to pending the appeal. The petitioner was suspended by a Memo bearing No. 4049(1) dated February 1, 2004. The petitioner claims that subsequent to the order of suspension, he had applied for withdrawal of suspension in view of the grant of bail by the Appeal Court. However, such suspension was not withdrawn. The petitioner had reached the age of superannuation on April 30, 2014. He had made a representation dated December 16, 2014 for release of terminal retirement benefits. He had made a further representation on August 31, 2015. 8. The authorities have not demonstrated that the criminal proceedings against the petitioner has any nexus with the duties required to be discharged by the petitioner as a teacher. 9. Chapter IV of the West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 provides that an employee governed thereby shall be entitled to pension subject to satisfactory service and either criteria laid down therein. Two conditions are required to be mandatorily fulfilled by an employee governed by the Scheme of 1981 to receive pension. One is satisfactory service and the other is the period of service qualifying such employee to be entitled to pension. 10. Chapter V of the DCRB Scheme, 1981 deals with the rate of pension. Clause 19(5) of the DCRB Scheme, 1981 provides as follows:- “19(5) Final pension, gratuity etc., shall not be sanctioned to an employee against whom department/judicial proceedings have been instituted/ continued. In case of misconduct of the pensioner, the pension sanctioning authority has the power to withhold pension or reduce the pension. Clause 19(5) of the DCRB Scheme, 1981 provides as follows:- “19(5) Final pension, gratuity etc., shall not be sanctioned to an employee against whom department/judicial proceedings have been instituted/ continued. In case of misconduct of the pensioner, the pension sanctioning authority has the power to withhold pension or reduce the pension. Where any department or judicial proceeding is instituted or where a departmental proceedings is continued against an employee who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying services up to the date of retirement, or if he was under suspension on the date of retirement up to the date immediately proceeding the date on which he was placed on suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon. Payment of this provisional pension shall be adjusted against the final retirement benefits sanctioned to such employee upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.” 11. Much Stress has been placed on the user of the word “judicial proceedings” in Clause 19(5) of the DCRB Scheme, 1981. It is contended on behalf of the Council authorities that, judicial proceedings in Clause 19(5) means any judicial proceedings. The moment any judicial proceedings is pending against an employee government by the DCRB Scheme, 1981, such employee will not be entitled to full pensions subsequent to such employee attaining the age of superannuation. 12. Clause 19(5) of Chapter V of the DCRB Scheme, 1981 has to be read in the context of the entirety of the scheme. The scheme provides for payment of pension to employees guided therein subject to such employee fulfilling the eligibility criteria. The eligibility criteria requires satisfactory service and a qualifying period of service. Judicial proceedings contemplated in Clause 19(5) of the DCRB Scheme, 1981 has to be read in such context. The scheme provides for payment of pension to employees guided therein subject to such employee fulfilling the eligibility criteria. The eligibility criteria requires satisfactory service and a qualifying period of service. Judicial proceedings contemplated in Clause 19(5) of the DCRB Scheme, 1981 has to be read in such context. Any judicial proceedings pending against an employee will not disentitle such employee governed under the DCRB Scheme, 1981 to full pension. If the contention of the Council is taken to its logical conclusion then any civil proceedings, such as a suit for partition filed against such employee by his cosharers or a title suit with regard to dispute relating to demarcation of the boundary line of a property will bring such employee within the ambit of Clause 19(5) of the Scheme of 1981 thereby disentitling such employee to full pension. This in my view, is not the scheme. The judicial proceedings referred to in Clause 19(5), therefore, has to be read in the context of a proceedings in relation to the satisfactory service of such employee during his service tenure. This is highlighted when one considers the user of the words “departmental/judicial/proceedings” as used in the clause. Departmental proceedings used in such clause would necessarily means proceedings against such employee in matters relating to the discharge of his duties as such employee. The judicial proceedings referred to in such clause would also mean a judicial proceeding in relation to the discharge of the duties as an employee. Such judicial proceedings must have a nexus with the duties discharged by the employee in the normal course of his employment. 13. Anandi Prasad Mahato (supra) is of the view that where a person has been convicted in a criminal proceedings and such criminal proceedings has no nexus with the service of the petitioner coupled with the fact that there is no allegation during the service of the petitioner and no disciplinary proceedings having been initiated during the tenure of such employee, withholding of terminal benefits is without authority. 14. In the facts of this case, the criminal proceedings in which the petitioner has been convicted has no nexus with his service. There is no allegation of pecuniary loss caused to the Government by the petitioner during the tenure of his service. The authorities did not initiate any disciplinary proceedings against the petitioner during his entire service tenure. 15. 14. In the facts of this case, the criminal proceedings in which the petitioner has been convicted has no nexus with his service. There is no allegation of pecuniary loss caused to the Government by the petitioner during the tenure of his service. The authorities did not initiate any disciplinary proceedings against the petitioner during his entire service tenure. 15. In Prafulla Chandra Mahato (supra) the Court had allowed disbursement of terminal benefits on the ground that departmental proceedings had not been initiated and that the criminal proceedings was not on the account related to his service. 16. In such circumstances, the petition succeeds. The authorities will release the terminal benefits of the petitioner arising out of his service within a period of 6 weeks from the date of communication of this order to them together with interest at the rate of 8 per cent per annum on arrears for the period from the date when the terminal benefits became due and payable till the date of his actual payment. This rate of interest is allowed taking under consideration that nationalized banks award interest at such rate in respect of fixed deposits. 17. W.P. No. 28290 (W) of 2015 is disposed of. No order as to costs.